District Court New South Wales Medium Neutral Citation: R v Shane Gregory BLACKWELL [2011] NSWDC 171 Decision date: 08 November 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: I acquit Shane Blackwell of the charge of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm and I find him guilty of the offence of recklessly causing grievous bodily harm Catchwords: CRIME - judge alone trial - charge of maliciously inflict grievous bodily harm with intent to do so - plea of guilty to alternative charge of recklessly inflict grievous bodily harm not accepted by Crown - glassing in hotel late at night - victim of act off-duty police officer - issue in trial whether or not intention proved - intoxication taken into account - good arguments both for and against - must be a reasonable doubt Legislation Cited: Crimes Act 1900 s 33, s 35 Category: Principal judgment Parties: Regina Shane Gregory Blackwell Representation: Mr LL Lungo for the Director of Public Prosecutions Mr PA Dunn for Mr Blackwell Ms L Gerber for the Director of Public Prosecutions Mr R Hudson (OBH Law) for Mr Blackwell File Number(s): 2008/10926 Judgment 1. Daniel Ward and his colleagues had finished work and were farewelling a workmate. It was Friday evening, 12 October 2007. They were all police officers. Some of them kicked on to Scruffy Murphy's, a hotel down this end of the city on the corner of Goulburn and George Streets. It was, by then, late and getting on for well after midnight. 2. Shane Blackwell was also at Scruffy Murphy's. He was alone and drunk. There was a dance floor and Daniel Ward and his female colleagues were dancing. Shane Blackwell started to make a real nuisance of himself. He persisted in trying to dance with one or two of the female police officers, even touching them inappropriately. He was told in clear terms that his presence was unwelcome. 3. Shane Blackwell was confronted by Daniel Ward and a couple of his colleagues. He responded by hitting Daniel Ward in the face. He had a glass in his hand. The blow severely injured Daniel Ward, so badly that one of his eyes had to be surgically removed. 4. Shane Blackwell was arrested and charged with the crime of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. 5. Both Shane Blackwell and the prosecution elected for a judge alone trial, before me. 6. Shane Blackwell acknowledged responsibility for hitting Daniel Ward with a glass and even acknowledged that he was guilty of recklessly causing grievous bodily harm. Shane Blackwell says that the grievous bodily harm which his actions caused were not done intentionally. 7. Before he can be found guilty of the crime with which he is charged - maliciously inflicting grievous bodily harm with intent to do grievous bodily harm - I have to be satisfied beyond reasonable doubt that when he struck Daniel Ward he did so with the intention of causing Daniel Ward grievous bodily harm. That is what this trial was about, whether at the time that Shane Blackwell hit Daniel Ward with a glass in his hand he did that intending to inflict grievous bodily harm on Daniel Ward. 8. To state the issue in those terms is not to reduce the significance of the issue. The crime with which he was charged - that of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm - is an offence against s 33 of the Crimes Act 1900 and carries a maximum penalty of twentyfive years imprisonment. The crime he acknowledges he was guilty of - recklessly causing grievous bodily harm - is an offence against s 35 of the Crimes Act and carries a maximum penalty of ten years imprisonment. 9. Thus, this is an entirely appropriate issue to be the subject of a criminal trial. The fact that the issue is able to be stated and dealt with in such simple terms is the result, significantly, of the competent representation which both parties had. The Director of Public Prosecutions was represented by Mr L.L. Lungo of counsel as the Crown Prosecutor and Shane Blackwell was represented by Mr P.A. Dunn QC. 10. Mr Lungo, in his address yesterday, conveniently summarised his case in favour of me being satisfied beyond reasonable doubt of Shane Blackwell's intention to inflict grievous bodily harm on Daniel Ward. 11. Mr Lungo argued that there was a motive for Shane Blackwell to do what he did. That was a reference to the fact that there was evidence that Shane Blackwell was told in no uncertain terms by Daniel Ward that his attention was not welcome. He was, in fact, told to " fuck off, we're coppers " or words to that effect. Mr Lungo argued that such a response to Shane Blackwell's attempt to join the group provided a motive for the crime with which he is charged. 12. Another reason advanced by Mr Lungo focused on Shane Blackwell's intoxication. Shane Blackwell was clearly drunk. Mr Lungo acknowledged the strength of the evidence about this. Various witnesses described him as " heavily " drunk, or " well " drunk or " clearly " drunk. One witness described Shane Blackwell as " pissed and messy." He was described by a couple of witnesses as " intoxicated ." Because this is a crime which the Crimes Act regards as one of specific intent, intoxication is a relevant matter for me to take into account in determining the specific intent which I have to determine. 13. Returning to Mr Lungo's point about intoxication, he argued that, despite these observations made, there was other evidence which was consistent with Shane Blackwell not being so intoxicated that he was unable to form the intent that Mr Lungo said I could find. Mr Lungo pointed to evidence that Shane Blackwell was shown on the closed circuit television ordering drinks from the bar. It is apparent from the video that he placed the order, was poured some drinks and then paid either by cash or credit card. It is clear, Mr Lungo said, that Shane Blackwell was not so drunk that he was able to manage a transaction such as that. 14. In addition, Mr Lungo said that after the event, when Shane Blackwell was arrested, he was not passed out but was struggling and, in fact, was able to make various assertions to those dealing with him, first a member of the public and then security and then the police. Shane Blackwell claimed that he had been assaulted and he said to the publican, who asked him why he would do such a shameful thing, " I just wanted to ". 15. Reference to that evidence leads me to another point that Mr Lungo made, namely the answer given by Shane Blackwell to the publican. Not only was it an admission, says Mr Lungo, that Shane Blackwell was responsible for what he did, but it is consistent with Shane Blackwell being sober enough to understand the question put to him and to respond to it not inappropriately. 16. Another factor which Mr Lungo points to is the force required to result in the condition of the glass after the blow was inflicted. The glass was recovered. It turned out to be a midi sized glass of 285 ml and was quite thick at the bottom. It became an exhibit. Mr Lungo argued that a good deal of force would be required for the infliction of the blow for the glass to end up as broken as it was. 17. Another argument advanced by Mr Lungo is that there were no injuries on Mr Blackwell's hands. If the scenario suggested by the defence is a reasonable possibility - that Mr Blackwell struck out instinctively, as it happened with his glass in his hand - then one would expect the breaking of the glass to bring about not only damage to Mr Ward, but injuries to Mr Blackwell's hands. There is evidence from photographs taken of him afterwards which indicates clearly that he has no injuries to his hands. Noone who dealt with Mr Blackwell at the scene noticed any injuries. 18. Mr Lungo pointed to the fact that the blow was inflicted on Mr Ward's face. It was not a blow inflicted on any less vulnerable part of Mr Ward's body. The glass was thrust, said Mr Lungo, at Mr Ward's face. That points to, or is consistent with, an intention on the part of the person who inflicted the blow that it should cause the maximum amount of damage. 19. Mr Lungo also relied upon the persistent approaches which Mr Blackwell made to the female police officers, one in particular, to dance with them. One officer he approached no fewer than four times. Mr Lungo took me to the transcript of each occasion that Mr Blackwell had approached this particular police officer. He was rebuffed each time. Mr Lungo argued that this showed a good deal of focus and attention. He was not so intoxicated that he could be easily distracted from what was on his mind. He had decided that he wanted to dance with this particular person and persisted with that intention. 20. Related to Mr Blackwell's intoxication, Mr Lungo also pointed to evidence on the CCTV and from other witnesses that, in addition to being able to order his drinks, Mr Blackwell was able to walk about and did not seem to be falling over or out of control of himself. 21. Mr Lungo also pointed to authority from the New South Wales Court of Criminal Appeal consistent with finding that the fact that an act such as this was impulsive does not mean it was not intentional. 22. Mr Dunn QC, on the other hand, argued that a fundamental question for me to decide was whether it had been established beyond reasonable doubt by the prosecution that his client had the specific intention to cause Mr Ward grievous bodily harm at the time that the blow was inflicted. Mr Dunn's argument was that there exist a number of other reasonable possibilities which were inconsistent with his client having that intention. 23. Mr Dunn took me to evidence that two witnesses had described the blow inflicted by Mr Blackwell as a punch. Mr Todd, another patron at the hotel, described what he saw as " a forward movement with an arm, exactly like a punch would be, but with, obviously, a glass in the hand " (T126). Sergeant Kylie Brooks who was the person on the dance floor who was most subject to Mr Blackwell's unwanted attention, gave a statement to the police who attended the scene on the night. Mr Dunn crossexamined her about the statement, which included this passage (at T 65) - "I saw the schooner glass in his right hand. The glass is nearly full and he punched his right hand forward, the glass in his hand straight into the middle of Dan's eyes on his nose." 24. Perhaps the most powerful evidence of intention, in fact, came from Ms Brooks in her evidence which she gave when she described before me how the blow was inflicted. She demonstrated from the witness box how it was inflicted and it is clear from her demonstration that the glass was tipped over, in the sense that the rim was facing towards Daniel Ward's face when it was thrust forward. Mr Dunn QC acknowledges that, but refers to the account given by Ms Brooks at the scene, which is consistent with a punch. As Ms Brooks said, that statement was given at the scene and perhaps when she had a good deal of other things on her mind. 25. Mr Dunn pointed to the dimensions of the wound inflicted on Mr Ward. Mr Ward indicated that one aspect of the wound formed a perfect circle. Not necessarily inconsistent with that, Mr Dunn pointed to dimensions of the wound including the eyebrow and the corner of the mouth. His point was that for the wound to be that large meant that it was more consistent with the glass being held in the hand of a man punching Mr Ward than with the glass being tipped over deliberately so that the rim faced Mr Ward to form a perfect circle. 26. Mr Dunn pointed to a number of factors which he said I should take into account in not being satisfied beyond reasonable doubt that his client had the intent that I need to be satisfied that he has. 27. He pointed to his client's level of intoxication. He pointed to evidence from the police officer who attended the scene in her official capacity afterwards which was consistent with his client being very drunk. She described him at (T184) as speaking in an inaudible voice, as appearing to be well affected by intoxicating liquor with him smelling of it on his breath. He was slurring his words. He was not able to hold his upper body upright without assistance and yelled out on several occasions in an inaudible voice. At other times she noticed that Mr Blackwell had his head against his chest with his eyes closed. She agreed that his behaviour appeared to be erratic. Mr Dunn pointed to evidence that when Mr Blackwell was taken back to the police station after his arrest the officer in charge of the interview process decided that he was too intoxicated to be interviewed straight away. There was a delay of some hours before he was able to be interviewed. That evidence of intoxication is not consistent with his client being able to form the specific intent that the prosecution charges him with. 28. Mr Dunn further argues that there is an absence of motive. Mr Dunn points out that when the CCTV is viewed and also when the evidence is taken into account, the behaviour is not consistent with a lot of aggression or hostility. The blow was preceded by his client being rebuffed a number of times after he had been behaving as a drunken idiot, but Mr Dunn pointed out there was no evidence of any hostility or aggression before the blow was inflicted. 29. Mr Dunn pointed to the actions of his client before the blow was inflicted. Mr Dunn argued that his client did not appear to be processing or comprehending what was going on. Despite being told that he had no chance with the woman whom he was trying to dance with and that they were " coppers " and in no uncertain terms being told to leave, he was still persevering. Mr Dunn said that that suggested his client did not appear to be processing what was going on. He was standing and staring. He did not appear to be comprehending what was happening. 30. Mr Dunn argued that when the video or CCTV is examined closely - and he did that with me during his address - his client can be seen to be falling backwards. Mr Dunn argued that that is consistent with his client stumbling backwards and instinctively throwing a punch as he was falling so that his actions were instinctive rather than deliberate. 31. Mr Dunn points to the conduct of his client immediately after the events. He said that he was not behaving in a way that suggested he had just been involved in a very belligerent and hostile act. He was not threatening people after he was detained. He was almost docile, one witness thought, and, as Mr Dunn said, his client did not fit the picture of a man who had just been in a pub brawl and had intentionally inflicted grievous bodily harm on one of the other patrons. 32. Finally, Mr Dunn pointed to the short period of time involved. The significant events occurred over some twenty seconds or so. Mr Dunn reminded me that the crime his client was charged with was one of specific intent so that his client must have formed that intent within those few seconds when the events occurred. When one looks at his client's ability to process information and his behaviour before and afterwards as well as his intoxication, it is not consistent with a person being able to form that very specific intent in that short period of time. 33. As can be seen from my recitation of very helpful arguments both in favour and against the proposition that Shane Blackwell acted within intent to inflict grievous bodily harm on Mr Ward, there are good arguments both for and against the proposition. That, inevitably, must leave me with a reasonable doubt about the formation of that intent. 34. Specifically, I would make these observations about some of the points helpfully made by Mr Lungo. So far as the admission made to the publican is concerned, it was an admission of participation in some event, but, as Mr Dunn says, when the question was posed by the publican referring to doing " such a thing ", we are not sure just what such a thing was that Mr Blackwell was admitting to. It is important to understand that what the prosecution has the burden of proving beyond reasonable doubt is that when Mr Blackwell punched Mr Ward, he intended not just to inflict actual bodily harm but to inflict grievous bodily harm. I do not read the admission made to the publican as an admission that he intended to inflict grievous bodily harm. It is consistent with an intention to inflict a blow on the victim of his aggression. 35. I think a similar thing can be said about Mr Lungo's argument about motive. Yes, he may well have been annoyed by being rejected and being told in no uncertain terms that his advances were not wanted and that he should clear off. That may provide a motive to respond aggressively or with annoyance. It is a different thing to say that it provides a motive to inflict grievous bodily harm. 36. Mr Lungo argued that the intoxication of Mr Blackwell was not so great as to deprive him of the ability to form the intent. That may be a step which I need to take in my process of reasoning. What the essential question is for me, is whether or not at the time that he inflicted the blow he intended to cause grievous bodily harm to the victim? 37. It is right, as Mr Lungo says, that the blow inflicted by Mr Blackwell was on the most vulnerable part of the body given that he had a glass in his hand. But there is evidence from Mr Todd that the blow in fact came over the shoulders of other people. That is also consistent with the only available target being the face of the person who was the object of his blow. Were the two men confronting each other directly in a fight and a person, with a weapon such as a glass or an object such as a glass chose, in those circumstances, to thrust it directly at the face of their opponent, then there would be a good deal more force in that argument. In this circumstance the person with the glass had exposed to him a far smaller target than might otherwise be the case. 38. Generally a good number of Mr Dunn's arguments carry some force. His client was behaving like a person who was very drunk. He did not appear to be adequately processing information about what was going on. True it is, as Mr Lungo said, that he had the capacity to go to the bar and order drinks. On the other hand, it was a very crowded and noisy venue and by the sounds of what Mr Blackwell said on a previous occasion, he had a standard order which he would make and it may have been a reasonably straight forward process. But otherwise his client seemed to be behaving consistent with a person who was so intoxicated that he was processing information in a very slow way. That was what he was like beforehand and particularly afterwards as well. 39. I think there is significant force in Mr Dunn's argument that when one looks at the period of time involved one has to be careful about being satisfied beyond reasonable doubt that, within those few seconds, Mr Blackwell was so affected by what had happened that he formed an intention not only, as I said, to lash out, not only to inflict a blow, not only to inflict actual bodily harm on the recipient of the blow, but in fact to inflict grievous bodily harm on the recipient of the blow. There is an argument in favour of that which is why it was appropriate that he be prosecuted, but when the evidence is examined it must, in my opinion, leave me with a reasonable doubt about the intention with which Mr Blackwell acted when he inflicted the blow. 40. I am not satisfied beyond reasonable doubt that the offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm is proven, but I am satisfied that Shane Blackwell committed an offence of recklessly causing grievous bodily harm to Daniel Ward. 41. Accordingly, I acquit Shane Gregory Blackwell of the charge of maliciously inflicting grievous bodily harm to Daniel Ward with intent to do grievous bodily harm to him and I find him guilty of the offence of recklessly causing grievous bodily harm to Daniel Ward. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2011